Fine on Githongo a body blow for anti-corruption fight

In late January 2005, Mr John Githongo, the then Permanent Secretary for Governance and Ethics in the administration of President Mwai Kibaki packed his bags, left the country for Europe on what was assumed was routine government business.

A well-known journalist and anti-corruption crusader, Mr Githongo had been appointed to the post in December 2002 by President Kibaki, who entrusted the young technocrat with the onerous task of tackling graft that had become gravely entrenched in government throughout the 24-year rule of Mr Kibaki’s predecessor, Daniel arap Moi.

To signal the President’s commitment against graft, Mr Githongo was based at State House and personally answerable to the President and not at Sheria House and answerable to Cabinet Minister for Justice and Legal Affairs at the time, Mr Kiraitu Murungi.

However, as he boarded a plane first to Davos, Switzerland, then to Oslo, Norway, and finally to London in early February 2005, little did the government mandarins know that Mr Githongo was fleeing for dear life abroad and away from the new monster of corruption in President Kibaki’s regime, which he claimed was threatening to swallow him alive.

SHADY TENDERS

In January 2006, a 91-page dossier he had compiled in his two-year course of duty back at home was leaked to the international press, unleashing a firestorm back home that would shake the Kibaki presidency to its core.

In the dossier, Mr Githongo claimed that he had discovered a series of shady deals, which had been designed during the Moi regime, but executed during Mr Kibaki’s term in which the public would lose more than Sh150 billion through fraudulent tendering.

He said he already knew of two fraudulent payments to a company called Anglo Leasing and Finance which had received $49 million (estimated to be Sh50 billion today) for work not done.

The company had been contracted to help to supply Kenya with a forgery-proof passport printing system and a police forensics laboratory.

Although the "commitment fee" was paid, no work was ever carried out, the report said. The money has since been returned but the government has refused to reveal by whom.

MURUNGARU

He then named four government officials as being at the centre of the scam: then Finance Minister David Mwiraria, Energy Minister Kiraitu Murungi, Vice-President Moody Awori and National Security Minister Chris Murungaru.

The Anglo Leasing scandal, as it became publicly known, was to the Kibaki administration what Goldenberg was to the Moi regime.

In a letter and statement dated November 2005, Mr Githongo said he repeatedly briefed Mr Kibaki about Anglo Leasing and the implicated officials before resigning in frustration.

"When I served as your Permanent Secretary, I had evidence of culpability on the part of the senior-most officials of our administration in some of the corruption-related scandals that were the subject of my department's interest," wrote Mr Githongo.

Mr Githongo’s dramatic fallout with the Kibaki regime was captured in the 2009 book It's Our Turn to Eat: The Story of a Kenyan Whistle-Blower by British journalist and author Michela Wrong.

Now, Dr Murungaru, who was the Kieni MP, was no ordinary minister. He was the leading member of President Kibaki’s kitchen Cabinet — the clique of influential ministers from the greater Mt Kenya region who were close to the President and were thought to be the ones running the show as the Head of State sought treatment at home and abroad for the serious injuries he incurred during a bad road crash he was involved in just days before his victorious December 2007 presidential elections.

DEFAMATION

In a clip aired on KTN in 2011, the burly Dr Murungaru told reporters who were filming him for a story they were doing that in his position as Cabinet Minister for National Security in Kibaki’s first term, he wielded more power than Prime Minister Raila Odinga who had been appointed to the position following the formation of Grand Coalition government of 2008-2013.

A deeply polarising figure in the Kibaki administration, the President first moved him to the ministry of Transport in a mini-reshuffle in February 2005 and eventually cut him loose when he sacked his entire Cabinet in November of the same year after the government suffered devastating defeat in the constitutional referendum.

Of the four Cabinet ministers Mr Githongo accused of being at the centre of the Anglo Leasing scam, only Dr Murungaru sued the anti-corruption crusader for defamation in 2006.

After 13 years in the corridors of justice during which the case was heard by several judges, this week, Justice Sergon ruled against the activist and slapped him with a Sh27 million bill.

In the Thursday ruling, the High Court directed Mr Githongo to pay the former minister Sh20 million in general damages, Sh5 million in exemplary damages and Sh2 million in special damages.

Mr Githongo was also ordered to pay full interest on the award until Dr Murungaru receives all his money and the costs of the suit.

APPEAL

In a statement to newsrooms, Mr Githongo expressed his displeasure at the ruling and vowed to appeal.

“I am disappointed though unsurprised by the judgment,” he said. “It is my plan to appeal this judgment as vigorously as possible. I refuse to lose perspective as a result of this latest development.”

On Saturday, Dr Murungaru told the Sunday Nation he was happy with the judgment, saying the allegations made by Mr Githongo in the Anglo Leasing scam were untrue.

“Corruption cannot be fought by unbridled activisms bordering on anarchy,” he said, adding “All Githongo did was fabrications and nothing but rumour-mongering driven by political motive as it is clearly stated in his book. I feel pity for him because he was unwittingly misused by various forces.”

He added that he didn’t care much about the award by the court which has raised eyebrows among politicians and legal practitioners.

“My good name and reputation are priceless,” said the former minister who has in recent years made news as a farmer in Nyeri County.

SLIPPERY SLOPE

However, Mr Raila Odinga, who was listed as one of Mr Githongo’s witnesses but who never testified, criticised the award as being punitive and would scare future whistle-blowers from going public on dirt on government officials.

“How can a whistle-blower be penalised for helping the country to save public funds?” posed Mr Odinga on Friday as he launched another attack on the Judiciary for abetting graft, either by granting bail to suspects or for punishing activists like Mr Githongo.

In Kenya’s legal history, Cabinet Minister Nicholas Biwott got the highest amount ever from libel awards — a total of Sh67.5 million from four cases where he had sued a number of individuals and firms, among them a British pathologist, two bookshops and The People Daily.

In December 2000, High Court Judge Alnasir Visram awarded him a record Sh30 million in an undefended defamation suit against British pathologist Lain West and journalist Chester Stern over a book by the former linking him to the death of Foreign Affairs Minister Robert Ouko in 1990.

BIWOTT'S PAY DAY

Earlier in July 2000, two Kenyan bookshops — Bookpoint and Bookstop — were fined Sh5 million each for selling the controversial book titled Dr Lain West’s Casebook.

In June 2002, Text Book Centre was also in trouble for selling Rogue Ambassador, a book by former American Ambassador to Kenya Smith Hempstone, which was also linked Biwott to Ouko’s death. The bookshop was ordered to pay Biwott Sh7.5 million as damages.

Earlier in March 2002, Biwott was gifted Sh20 million from People Daily for publishing a defamatory article against him touching on Turkwel Gorge hydroelectric power project. Biwott died in 2017.

Coming on the backdrop of the Constitution, which guarantees freedom of expression and the public right to know, before he left office in June 2016, Chief Justice Willy Mutunga had reviewed the retributive penalties meted on media houses when courts find them guilty of defamation or invasion of privacy.

REFORMS

The reforms led to the abolition of criminal libel, but the punitive awards are yet to cease.

In August 2016 the High Court awarded Justice Visram Sh26 million in a libel suit against the Standard Group for writing that he was not fit to be Chief Justice. This was the third highest award.

Two months earlier in June 2016, the High Court awarded Justice Samuel Mukunya Sh20 million in a libel suit against the Nation.

The previous benchmark award was Sh6 million awarded to Chief Justice Evan Gicheru in 2006.

Additional report by Wanjohi Githae